Snowden and a Muzzled Free Press

“Snowden and a Muzzled Free Press”

By Frank Snepp, Posted, July 3, 2013

The conservative Republican Rep. Peter King of New York recently uncorked the genie that journalists fear most, by calling for a crackdown on anyone who gives air time to Edward Snowden and like-minded leakers. To most of my journalist colleagues, this seems to violate the most basic tenets of press freedom. But as I discovered from my own bout with the U.S. Supreme Court, the First Amendment can be a fickle friend for anyone who dares defy the guardians of “official secrecy.”

The continued hemorrhaging of some of our most closely held intelligence could make the administration an ally of King’s, particularly if Snowden keeps lobbing headline-grabbers from some hideaway abroad. Attorney General Eric Holder has already shown his colors by prosecuting more leak cases under the espionage statutes than any of his predecessors, and by making reporters’ phone and e-mail records fair game in related investigations.

The WikiLeaks case bears all the hallmarks of his take-no-prisoners strategy and should be a wake-up call for anyone tempted to follow in the footsteps of Bradley Manning, the Army private on trial for allegedly downloading countless classified files to the WikiLeaks website. In building a brief against him, military prosecutors are interpreting the espionage statutes and an aiding-the-enemy charge with abandon, and have even suggested that his actions were tantamount to sharing secrets with Osama bin Laden.

The criminal complaint against Edward Snowden ups the ante even further. It targets the cherished source of two doggedly mainstream journals, The Washington Post and the Guardian, a British newspaper. And it includes an espionage charge involving some of our most highly classified secrets — the communications intelligence Snowden allegedly stole from his former employer, the National Security Agency.

What makes all this vexing for journalists is a snake in the haystack. The communications statute cited against Snowden specifically targets anyone who “publishes” the restricted information. Both he and Manning are also saddled with a more generalized espionage charge that makes it illegal for anyone to pass “national defense” information to an unauthorized recipient, or to conspire to do so. Journalists as well as leakers can easily be fit into the starring role.

Eric Holder seems to agree, as we’ve learned from a recently leaked FBI affidavit. It accuses Fox reporter James Rosen of having conspired in an act of espionage when he elicited intelligence from a leaky insider. The affidavit doesn’t seek an indictment against him, only his e-mail records.

But just such an indictment could be in the works for WikiLeaks editor-in-chief Julian Assange, and if so, it would be bad news for all leak hounds. A secret grand jury began investigating Assange more than two years ago, and First Amendment guru James Goodale, who represented The New York Times in the Pentagon Papers case, has publicly speculated that Assange could wind up facing conspiracy charges modeled after the Rosen affidavit if he ever lands on American soil.

Typically, espionage cases are won or lost on issues that don’t apply to Web publishers, let alone mainstream journalists. Normally what’s required is clear proof of unpatriotic intent and real damage to the country. But the communications statute in the Snowden case allows for a guilty verdict if a leak is merely “prejudicial to the U.S. interest” — a flimsy standard that could convict a journalist for simply recycling Snowden’s handouts. And from the Pentagon Papers case onward, prosecutors have tried to lower the bar even further.

President Nixon tried and failed to get leaker Daniel Ellsberg and his accomplices jailed for espionage without putting their motives on trial — the first time the spy laws had been used against anyone other than a spy — and the Reagan administration scored an actual conviction on this basis.

A civilian analyst for the Navy had been arrested for handing classified satellite photos to a British magazine. He hadn’t meant to help a foreign adversary and there was no proof of real harm to U.S. security. But, the courts trounced him anyway, making him the first U.S. official ever to go to jail on an espionage rap for merely leaking secrets to the press. (He was pardoned by President Bill Clinton.)

Throughout all this, journalists have remained dangerously blase, convinced that they could never be made to pay for their sources’ sins. No reporter, after all, has ever been convicted of espionage for publishing secrets, and the Supreme Court has generally given the press a free pass to publish even nonpublic government information if obtained lawfully.

But if Assange gets convicted, that could be a game changer. Attorney Goodale warns that the spy laws could then potentially be used to punish any “conspiracy to commit journalism” when official secrets are involved.

Nor is espionage the only stick that can be used to beat the press. A theft-of-government-property charge has also been lodged against Manning and Snowden, and it wouldn’t take much to stretch it to fit their “fences” in the media.

Civil law also offers a fallback, as the Supreme Court proved in its breakthrough ruling against me.

Like Snowden, I’d once been a dedicated spook, but it was Vietnam, not the NSA, that broke the spell. After experiencing the collapse of Saigon firsthand, I quit the CIA in a fit of anguish and published a memoir, “Decent Interval,” about botched intelligence and the abandonment of our Vietnamese allies. Prosecutors in the Carter Justice Department hauled me in for allegedly violating CIA secrecy agreements and an invisible “trust” by publishing my book without agency approval.

They did not accuse me of revealing any secrets, classified or otherwise. No secrets, period. My offense, as they saw it, was procedural: I’d deprived the agency of the chance to sort out whether my writings might expose secrets before the damage was done.

Never mind that I’d been trained to recognize secrets when I saw them, and it didn’t seem to faze prosecutors that the CIA routinely gave a pass to any unauthorized author from the ranks who wrote favorably of its operations. Instead they set out to chill all potential whistle-blowers by seeking severe penalties against me without any proof of damage to anybody.

The Supreme Court obliged them in spades. It declared that I had irrevocably damaged the country by creating the appearance of a CIA security meltdown and decreed that I be gagged for life — required to submit to agency screeners anything I might write about what I’d learned “as a result of” my government service, whatever that means. The government was also allowed to confiscate every cent I had earned from “Decent Interval,” including the equivalent of all the taxes I had already paid on those earnings. Profits from any reprints or film rights are also forfeited — forever.

Some journalists decried this penalizing of nonclassified disclosures in the absence of proven harm, and warned of serious damage to the First Amendment. But most people concluded that an errant spook had simply received his comeuppance — and no sweat for anyone else.

The ruling was a ticking time bomb. Under the government’s theories, it’s not merely the leaker or unapproved author who breaches a “trust” but anyone along the daisy chain. Indeed, my lawyers discovered that prosecutors had considered suing my publisher, Random House, and “60 Minutes.” But out of concern for pushback from the press’s own First Amendment lobby, they had decided to target me alone.

It was a shrewd call. The time bomb kept ticking, and several years later it exploded. The cigarette manufacturer Brown & Williamson learned that a former employee, Jeffrey Wigand, was about to expose what he claimed was a company cover-up of the true hazards of nicotine. Invoking the Snepp ruling and other case law, the firm’s lawyers threatened to sue CBS if it aired a Wigand interview, which they said would violate a nondisclosure agreement he’d signed on the job. CBS buckled and canceled his appearance.

Take warning, Edward Snowden and your Guardian and Post helpmates. All CIA and NSA employees and contractors take on nondisclosure commitments, and thus have a contagious liability that can be passed along to journalistic bed partners.

And it isn’t the sensitivity of the message that can send you to the poorhouse. The creator/producer of the FX spy drama “The Americans” is an ex-CIA agent and signatory of an agency secrecy agreement, and if he doesn’t submit his scripts to the CIA for vetting, FX, the actors and crew could all conceivably be dinged for this “breach of trust,” even if the only CIA reference in his scripts is a piece of dialogue about luncheon specials in Langley’s cafeteria.

Such are the consequences of anti-leak paranoia gone haywire.

President Obama has tried to assure us in the face of Snowden’s leak-fest that Congress and the courts stand ready to safeguard all our civil liberties. But the Supreme Court accepted uncritically all government security claims in my case because of public hysteria over the Iran hostage crisis and Soviet invasion of Afghanistan. And the tremors still resonating down from 9/11 make judges and legislators today equally timid watchdogs, especially when it comes to the NSA.

No wonder Snowden and other freshly minted idealists who wind up with access to our most sensitive secrets freak out at the first glimpse of excess, even if they can’t quite pinpoint any specific abuse. Confusion reigns, and leaks rain down, when hypocrites in Congress, the courts and the executive branch claim they’ve got our backs when they don’t.

As a journalist I rue the implications of all this for my own profession. King should be reminded that punishing the messenger never stops the drip and inevitably diminishes constitutional protections for us all, even him.

But because my CIA service taught me that secrets can sometimes save lives and make bad policies better, I must extend a tentative benefit of the doubt to a constitutional law professor turned president who is struggling, without a roadmap, to balance unprecedented post-9/11 security needs and time-honored constitutional values.

Let’s face it: In an era of instant threat, Web-nurtured sappers and the amplification-by-Internet of the damage from truly dangerous leaks, who’s to be faulted for erring on the side of caution?

And though I share Snowden’s belief in the purifying powers of transparency, I can only hope he resists the zealot’s temptation to burn down the village in order to save it. That only stokes the bomb-throwers and those in government who oppose letting any light into the darker corners of our espionage empire.

Nor is self-restraint just for cowards and losers. Ellsberg, after all, held back some of the most sensitive of the Pentagon Papers, those that protected diplomatic efforts to end the Vietnam War. And my own book exposed none of the secrets I knew that had survived the fall of Saigon. Even so, my concerns got aired anyway — and maybe, just maybe, some of my successors in the spy world learned enough from what I wrote not to repeat the mistakes that shamed us.

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